Tarrance v. State

• Decision Date: 23 July 1901
• Citation: 43 Fla. 446,30 So. 685
• Parties: TARRANCE et al. v. STATE.
• Court: Florida Supreme Court

30 So. 685

43 Fla. 446

TARRANCE et al. v. STATE.

Florida Supreme Court

July 23, 1901

Error to circuit court, Escambia county; Evelyn C. Maxwell, Judge.

James Tarrance and others were convicted of murder in the third degree, and bring error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The laws of this state prescribing the qualifications of jurors and regulating the manner of selecting, summoning, and impaneling them, do not disqualify any person on account of race, color, or previous condition of servitude; nor do such laws authorize any discrimination on this account by those whose duty it is to enforce the regulations prescribed for selecting, summoning, and impaneling jurors.

2. Defendants in criminal cases have no right to challenge an array of petit jurors whose term of service will expire before such defendants are to be placed upon trial.

3. A motion to quash the panel of grand jurors because of alleged discrimination against persons of color by officers selecting the list from which such grand jury is drawn does not lie in behalf of one who has been indicted by such grand jurors, the proper practice being to interpose a plea in abatement of the indictment because of such discrimination.

4. All objections to the competency of, and to irregularities in selecting, drawing, and impaneling, grand jurors, not appearing of record, must be taken advantage of by plea in abatement of the indictment, and not by motion to quash it.

5. If a motion to quash the indictment be treated as properly raising the objection that persons of color were discriminated against by the officers selecting the list from which the grand jury finding it was drawn, the motion, to be available must be supported by proof of such discrimination, where such fact does not appear of record, even though such motion is verified by the affidavit of the defendants, unless there be an agreement of the state or an order of the court to the effect that the verified motion be considered as evidence.

6. An affidavit to the effect that affiant has read the contents of a certain motion to quash an indictment, alleging discrimination against persons of color by officers selecting the list from which the grand jury presenting the indictment was drawn, and that the matters and things set up in the motion are to his best knowledge, information, and belief true, as therein set forth, is not proof of the facts set up in the motion. The affidavit asserts no knowledge information, or belief upon the subject-matter of the motion; nor does it appear therefrom that the affiant had any knowledge, information, or belief whatever upon the subject.

7. Where officers charged with summoning venires for petit jurors from the body of the county discriminate against persons of color, solely on account of their color, in executing the venire, a colored person upon trial, charged with crime, may challenge the array of such petit jurors upon the ground stated, when it is proposed to select jurors to try him from such special venire; but where the fact of such discrimination does not appear of record the challenge must be sustained by proof, otherwise it is properly overruled.

COUNSEL Isaac L. Purcell and C. H. Alston (A. W. Spears, on the brief), for plaintiffs in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

CARTER J.

At the fall term, 1900, of the circuit court of Escambia county, beginning on Monday, December 3d, plaintiffs in error were indicted for the murder of one W. B. Moore. The indictment, presented and filed December 5th, charged them with murder in the first degree; but upon a trial had at the same term they were found guilty of murder in the third degree, and from the sentences imposed sued out this writ of error.

In the oral argument of counsel for plaintiffs in error every question presented by the record and assignment of error was expressly abandoned, except the specific rulings considered in this opinion. Under the practice prevailing in this court, all questions not argued, or which are expressly abandoned, we are not required to consider.

After the indictment was presented and filed, but before pleading thereto, on December 5th, defendants filed the following motion in the cause:

'And now come the defendants, in their own proper person and by their attorneys, Purcell, Spears, and Alston, and before pleading to the indictment herein, and shows unto the court here:

'(1) That they are colored men of African descent, citizens and residents of the state of Florida, and of the United States of America. That they are charged of the murder of one W. B. Moore, a white man.

'(2) That in the selection of names for jury duty by the county commissioners of Escambia county, Florida, in and for the present year, all colored men of African descent were discriminated against by the said county commissioners on account of their race, color, and previous condition of servitude; refused and failed to select the names of any colored men for jury duty on account of their race, color, and previous condition of servitude.

'(3) That it has been the custom of the county commissioners in and for said Escambia county, Florida, in selecting names for jury duty as required by law at their first meeting in January of each and every year, to discriminate against all colored men of African descent, and refuse to select the names of any, on account of their race, color, and previous condition of servitude.

'(4) That all colored men of African descent have been discriminated against in the selection of names for jury duty for many years on account of their race, color, and previous condition of servitude. That the sheriff and other officers of said Escambia county, Florida, whose duty it is made by law to summon jurors from bystanders or the county at large, discriminate against all colored men of African descent, and refuse to summon any on account of their race, color, and previous condition of servitude.

'(5) That there are in said Escambia county, Florida, as many colored citizens of African descent of sound judgment, approved integrity, fair character, and fully qualified for jury duty, and are well known to be so qualified for jury duty by the said county commissioners, as there are white men. There are more than one thousand four hundred colored men in said county who are fully qualified for jury duty, of approved integrity, fair character, and sound judgment, and a large number of taxpayers.

'(6) That the said county commissioners of Escambia county, whose duty it is made by law to select the names for jury duty in said Escambia county, Florida, for each and every year, are all white men, appointed by the governor of the state of Florida on the recommendation of the white Democratic voters of said Escambia county, Florida.

'(7) That from the list so unlawfully selected by the said county commissioners as aforesaid on the --- day of January, A. D. 1900, were selected or drawn the present venire, from which said venire were drawn the grand jury that found the indictment against the defendants, as also the petit jury by whom these defendants are to be tried, and from which list all colored men of African descent were discriminated against by the said county commissioners knowingly, and not one colored man was selected, simply on account of their race, color, and previous condition of servitude. Therefore these defendants move to quash the venire drawn for this present term of this honorable court, also the panels of grand and petit jurors, on the following good and sufficient reasons: First. Because the law under which the present venire for the present term was drawn is unconstitutional, in that it denies defendants an impartial jury and trial, as guaranties by section 11, Declaration of Rights, Const. Fla., and in that the law is special and not general in its application, referring only to a certain class of persons, known to the county commissioners as possessing certain qualifications, while others possessing the same qualifications are excluded, and therefore the law is unconstitutional, under sections 20, 21, art. 3, Const. Fla. Second. Because the county commissioners, in selecting the lists of names for jury duty for and during the present year, discriminated against all colored men of African descent, on account of their race, color, and previous condition of servitude, and from said list were drawn the grand and petit jury which found the indictment against these defendants, and the petit jury which is to try them. Third. Because for many years all colored men of African descent have been discriminated against, and none have been selected or drawn or summoned as grand or petit jury in this or any of the courts of this county, although there are more than one thousand four hundred colored men in said county, a large number of whom are taxpayers, and of approved integrity, fair character, sound judgment and intelligence, well known to the county commissioners to be such; and this discrimination is based entirely on race, color, and previous condition of servitude. Fourth. By this discrimination against colored men aforesaid these defendants are denied the equal protection of the law, as provided and guarantied to them by the fourteenth amendment to the constitution of the United States of America. Therefore these defendants move to quash the venire, and the panels of the grand and petit jurors as drawn for the present term of this honorable court.'

It appears from the record proper, as well as from the bill of exceptions, that when this motion was filed the indictment had been presented by the grand jury and filed, and that the only petit jury drawn and summoned at that time was the jury for the first week of the term,...